Two Court Cases, A Ballot Initiative, and One Big Goal

By Mark Johnson Roberts, PQ Monthly

It seems everywhere we turn these days, state bans on marriage for same-sex couples are falling. Eighteen American jurisdictions (17 states and the District of Columbia) now allow same-sex couples to wed on the same terms as opposite-sex couples. Here in Oregon, our constitutional exclusion of marriage for same-sex couples is being challenged both in court and at the ballot box.

The ballot measure is a long-term project of Basic Rights Oregon and other local and national advocates, who have formed the Oregon United for Marriage campaign to pass the Freedom to Marry and Religious Protection Initiative. The measure seeks again to amend Oregon’s constitution, removing the prohibition on marriage for same-sex couples and affirming in the constitution the right for all couples to marry, without regard to sex. The measure also clarifies in the constitution that religious institutions reserve the right to marry whom they choose. The campaign is in the process of collecting enough signatures to put it on the ballot in November.

The ballot initiative serves a variety of purposes. Most importantly, of course, it would repeal the noxious Measure 36 language adopted by Oregon voters in 2004. But there is more to it than that. BRO and its allies literally have spent years laying the groundwork for a win, meaning that they have been out in local communities across the state, knocking on doors and having thousands of conversations about the freedom to marry for all. Oregon’s LGBTQ community is unaccustomed to seeing the initiative process produce anything but heartache, but the campaign’s philosophy rests on the idea that a ballot measure can be used to raise consciousness and to educate the public about the lives of their LGBTQ friends and neighbors. And ultimately, the clear possibility exists that Oregon will hand the national movement its first voter-initiated repeal of an anti-marriage constitutional amendment. It is impossible to overstate the value of such a win to LGBTQ couples nationwide.

Into the mix now come a pair of court cases. Both filed in the United States District Court in Eugene, the cases seek to test Measure 36 on federal constitutional grounds. The cases rest on the United States Supreme Court’s decision this past summer in United States v. Windsor. In that case, the court held unconstitutional the federal Defense of Marriage Act, which prohibited federal recognition of legal marriages for same-sex couples, lawfully contracted in those states and countries where they were performed. Because the court ruled in a five-to-four vote, and because it did not decide whether states could ban marriage for same-sex couples, the outcome of the cases must be regarded as uncertain.

The Utah case now pending before the United States Tenth Circuit Court of Appeals provides a good illustration of the shortcomings of litigation as a way to advance LGBT rights. The District Court judge, Hon. Robert J. Shelby, held on December 20 that Utah’s Amendment 3, which banned marriages for same-sex couples in the state, was unconstitutional. His ruling tracked the Supreme Court’s Windsor analysis precisely: “Utah’s prohibition on same-sex marriage conflicts with the United States Constitution’s guarantees of equal protection and due process under the law. The State’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason. Accordingly, the court finds that these laws are unconstitutional.”

The State of Utah responded by appealing to the Tenth Circuit, but both courts denied a stay, so the state began marring couples immediately. Within a week of the ruling, Utah had issued over 900 marriage licenses to same-sex couples. But on January 6, the Supreme Court issued a stay, halting the marriages and casting into a legal limbo those couples already married. The Supreme Court’s ruling on the stay raises the clear concerns that the Court is still interested in the issue, that it might take the Utah case on appeal from the Tenth Circuit, and that the five-vote majority in Windsor might or might not hang together on the larger question of full marriage equality for LGBTQ couples.

Whatever other concerns might be raised about proceeding through a ballot measure, being overturned by a higher court generally is not among them. Also, as BRO is proving with each day that passes, a ballot measure can be used to engage and educate the public in ways that a court case cannot.

Again, Oregonians have not had positive experiences with handling ballot measures and litigation simultaneously, but today the dual-pronged approach is quickly becoming the method of choice for advancing marriage equality nationwide. While litigation can be seen as providing a “quick fix,” the Utah experience shows how that promise can be unfulfilled. And a ballot measure, although it is a major endeavor, can support litigation in two ways—first, by creating an environment favorable to getting positive results from the courts, and second, by building support among the public for a court’s decision and making it less likely to fall to a subsequent political attack. Without public support, we see outcomes like the one in Iowa, where a number of Supreme Court justices were turned out of office by the voters following that court’s ruling in favor of marriage equality.

While handling litigation and a ballot measure at the same time may seem confusing at times, it appears to be the best and most certain way to achieve marriage equality in Oregon as quickly as possible. Although the precise path is not yet clear, LGBTQ Oregonians can be excited that—it appears—we will not have to go another year without having marriage for committed same-sex couples right here in Oregon.